Criminal Law in Hong Kong

Criminal Law in Hong Kong

Michael Jackson
Series: Law Series
Copyright Date: 2003
Pages: 852
https://www.jstor.org/stable/j.ctt1xcrrj
  • Cite this Item
  • Book Info
    Criminal Law in Hong Kong
    Book Description:

    Criminal Law in Hong Kong offers a clear and comprehensive account of the general principles of criminal law in Hong Kong and will be useful to students, practitioners, and all who are responsible for or interested in the administration and practice of the criminal justice system in Hong Kong. This book focuses on the general structure and principles of criminal liability, emphasizing local legislation and case law as Hong Kong's criminal law increasingly diverges from its English origins. Where necessary, it also includes discussion of how certain areas of Hong Kong's criminal law may develop. In addition, the book outlines a range of offences, including those commonly dealt with in undergraduate courses. Part One of the book examines the foundations of Hong Kong's criminal law. The general principles of criminal liability are then covered in Parts Two to Four, including the elements of liability, general defences, and participation and inchoate liability. In Parts Five and Six, fatal and non-fatal offences against the person, sexual offences, and offences against the Theft Ordinance are discussed.

    eISBN: 978-988-220-091-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-x)
    Michael Jackson
  4. Table of Cases
    (pp. xi-xliv)
  5. Table of Legislation
    (pp. vl-lxii)
  6. PART I INTRODUCTION
    • 1 Crime and Criminalization
      (pp. 3-24)

      Criminal law is the body of substantive law underlying the criminal justice system in Hong Kong. When a person is charged with a ‘crime’, this involves an assertion or allegation that he or she has acted in a manner falling within the scope of one or more of the myriad offences recognized under Hong Kong law. These numerous offences, most of which are statutory in origin, but some of which, including murder, manslaughter and common assault, remain a product of judicial decision-making or what is called the ‘common law’, together form part of the criminal law of Hong Kong. Another...

    • 2 The Criminal Law of Hong Kong
      (pp. 25-60)

      The general structure and much of the content of Hong Kong’s present body of criminal law was imported into Hong Kong from England in 1843 in the Special Administrative Region’s (SAR) early days as an English colony.¹ It has been added to and modified in the course of time, but still closely resembles English criminal law which continues to influence its development. Broadly speaking, the criminal law entails two distinct parts — the general principles of criminal liability, which are used to determine whether a person is liable for any particular offence, and the offences themselves.

      The offences include such well-known...

  7. PART II THE GENERAL STRUCTURE OF CRIMINAL LIABILITY
    • 3 The Elements of Offences: Actus Reus
      (pp. 63-108)

      This part will examine the general structure of criminal liability. Two concepts are used for this purpose: actus reus and mens rea. These two Latin terms come from the expression ‘actus non facit reum, nisi mens sit rea’, meaning ‘an act alone is not criminal, unless the mind also be guilty’, and, despite criticism that the use of these terms is somewhat anachronistic in the modern day, they continue to be employed by criminal lawyers and commentators as organizing concepts.

      Actus reus and mens rea represent the two foundational aspects of criminal liability — the conduct, or physical, element (actus reus),...

    • 4 Mens Rea
      (pp. 109-176)

      The second requirement for criminal liability is fault. Traditionally, this involves the proof of what is called mens rea, or ‘guilty mind’, taken from the expression ‘actus non facit reum, nisi mens sit rea’, meaning ‘an act alone is not criminal, unless the mind also be guilty’.

      At one time, mens rea meant ‘guilt’ in a generalized sense, and involved the characterization of a person’s state of mind as ‘evil’ or ‘wicked’. ‘Guilt’ in this sense is no longer expressly required to establish criminal liability. Instead, one or more specific states of mind — such as ‘intention’, ‘knowledge’, ‘recklessness’, ‘wilfulness’ — will...

    • 5 Negligence and Strict Liability
      (pp. 177-208)

      Despite the presumption of mens rea, it is not always necessary for the prosecution to prove mens rea in order to establish criminal liability. Firstly, negligence alone may suffice. Secondly, criminal liability for statutory offences may arise without regard to whether the defendant acted intentionally, knowingly or recklessly, or even, in more exceptional cases, negligently; that is, without proof of either subjective or objective fault in any form on the part of the defendant (beyond the fact that the conduct was voluntary). Offences of this nature are known as ‘strict liability’ offences.

      Negligence involves the failure to comply with the...

  8. PART III DEFENCES
    • 6 Capacity and Incapacitating Conditions
      (pp. 211-276)

      Criminal liability presupposes that the person who is being held liable is responsible for his or her actions. Some defences challenge this assumption, asserting that D does not (or did not) possess the necessary mental capacity to be held ‘criminally responsible’. This assertion may be based on the defendant’s youth — giving rise to the defence of infancy — or on the fact that the defendant is (or was) suffering from mental abnormality — giving rise to the general common law defences of insanity and automatism, and, in the case of murder, the special statutory offence of diminished responsibility. These defences are outlined...

    • 7 Justifications and Excuses
      (pp. 277-326)

      A person charged with an offence will be acquitted if he or she successfully raises one or more of the following general ‘defences’: self-defence, crime prevention, duress, marital coercion, necessity and perhaps also superior orders. These defences, several of which (crime prevention and marital coercion) are statutory in origin, with the others remaining a matter of common law, are ‘general’ in the sense that they are available (with some exceptions) to crimes generally (see D.W. Elliot, ‘Necessity, Duress and Self-Defence’ [1989] Crim LR 611).

      Not all of these defences operate in the same way. Self-defence, crime prevention and necessity (where...

  9. PART IV PARTICIPATION AND INCHOATE LIABILITY
    • 8 Participation
      (pp. 329-402)

      Criminal liability is not limited to the person who physically commits an offence. A range of other persons may also be criminally liable by virtue of their ‘participation’ in the commission of the offence in various ways.

      Firstly, a person who assists, encourages or procures (i.e. causes) another to commit the offence may be criminally liable as a party to that offence. In this situation, the person who physically commits the offence — who intentionally does the act that kills another (murder), or recklessly does the act that destroys property belonging to another (criminal damage), or intentionally does the act inflicting...

    • 9 Inchoate Offences: Incitement, Conspiracy and Attempt
      (pp. 403-486)

      Under Hong Kong law, conduct prior to the commission of a full offence may, in certain circumstances, itself lead to criminal liability. This will be so if the conduct amounts to incitement to commit an offence, conspiracy to commit an offence, or an attempt to commit an offence. Incitement, conspiracy and attempt constitute what are called ‘inchoate offences’. Together, they enable criminal sanctions to be imposed on persons who carry out various acts prior to or in preparation for the commission of an offence (usually called the ‘substantive’ or ‘primary’ offence) with intention to commit that offence, despite the fact...

  10. PART V OFFENCES AGAINST THE PERSON
    • 10 Homicide
      (pp. 489-552)

      ‘Homicide’ is the killing of a human being by another. Homicide may be lawful or unlawful. It is ‘lawful’ if it results from the legitimate use of force in the exercise of rights of self-defence or crime prevention (see Chapter 7, p. 279), or from the lawful execution of a death sentence.¹

      If the killing is not lawful, it may amount to an offence. Four homicide offences exist in Hong Kong: murder and manslaughter, at common law, and the statutory offences of infanticide (section 47C of the Offences Against the Person Ordinance (cap. 212) (OAPO)) and causing death by dangerous...

    • 11 Non-fatal Offences Against the Person
      (pp. 553-598)

      This chapter outlines a number of non-fatal, non-sexual offences against the person. These offences are found in the Offences Against the Person Ordinance (cap. 212) (OAPO), which is based on the Offences Against the Person Act 1861 (UK) (OAP Act 1861), and include: common assault (i.e. assault and battery, punishable with one year’s imprisonment (section 40 of OAPO)); assault occasioning actual bodily harm, punishable with three years’ imprisonment (section 39 of OAPO); assaulting, resisting or wilfully obstructing a police officer in execution of duty, punishable with two years’ imprisonment (section 36(b) of OAPO); malicious wounding or inflicting grievous bodily harm,...

    • 12 Sexual Offences
      (pp. 599-642)

      Part XII of the Crimes Ordinance contains a wide range of sexual offences. These may be broadly divided into two categories.

      Firstly, there are those offences involving acts which by their nature involve sexual violence or violation, usually committed against an individual. These are mostly contained sections 118 to 128 of the Crimes Ordinance. They include rape (section 118), non-consensual buggery and gross indecency (sections 118A to 118G), indecent assault (section 122), unlawful intercourse with a girl under the ages of 13 (section 123) and 16 (section 124) or with a defective (section 125), and abduction of unmarried girls and...

  11. PART VI OFFENCES AGAINST PROPERTY
    • 13 The Theft Ordinance: Theft, Robbery and Handling
      (pp. 645-726)

      The Theft Ordinance (cap. 210) (TO) contains more than 20 offences broadly involving dishonest dealings with property. These offences include theft, robbery and handling (covered in this chapter), and deception and fraud offences (covered in Chapter 14).

      The TO, enacted in 1970, was modelled on the UK’s Theft Act (TA) 1968. Like that Act, it was intended to be a new start for offences of dishonesty against property, doing away with numerous existing statutory and common law offences, filling gaps in the body of offences, and eliminating many of the complexities associated with these offences.¹ The TA 1968, and thus...

    • 14 The Theft Ordinance: Deception and Fraud Offences
      (pp. 727-772)

      Part III of the Theft Ordinance (TO) contains a number of offences all requiring proof that a particular end result was brought about by the defendant’s dishonest deception. These include obtaining property by deception (section 17) (section 15 of the Theft Act (TA) 1968), obtaining pecuniary advantage by deception (section 18) (section 16 of the TA 1968), obtaining services by deception (section 18A) (section 1 of the TA 1978), evading liability by deception (section 18B) (section 2 of the TA 1978), procuring an entry in bank records by deception (section 18D), and procuring the execution of a valuable security by...

  12. Index
    (pp. 773-790)